HR & Employment Law Insights

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We have recently dismissed an employee who is now appealing against the dismissal, we urgently need to find a replacement for this position but can we advertise for a replacement when he is appealing?

We get asked HR related questions every day and each week we will be sharing our top question of the week that we have been asked here at The HR Booth.

In this week's question of the week, Alistair answers the question "Can we advertise for a replacement when the former employee has been dismissed but is appealing against their dismissal"

Question

We have recently dismissed an employee who is now appealing against the dismissal, we urgently need to find a replacement for this position but can we advertise for a replacement when he is appealing?

Answer

Yes, you can advertise the vacancy that has arisen as a result of the dismissal of your employee without waiting for the outcome of the employee's appeal, however, this could lead to a difficult situation for you should his appeal succeed after a job offer has been made to a successful candidate. If he is not reinstated to his previous role because this has already been filled, he is likely to have a claim for unfair dismissal. Alternatively, you may decide to withdraw the job offer made to the successful candidate, which could lead to a breach of contract claim, which is the notice period i.e. 1 week.

If his appeal fails and his dismissal is upheld, he may argue the fact that because you had started the recruitment process for a replacement shows that you did not conduct the appeal process with an open mind and that the outcome had been prejudged. A tribunal might take this into account in an unfair dismissal claim, alongside other evidence of the fairness or otherwise of the procedure undertaken. You should ensure that you can demonstrate the reasons for rejecting the appeal and that it followed a fair procedure, under which reinstating him was a possible outcome.

To avoid such issues my advice would be to avoid unnecessary delays in the appeal process and aim to complete it before recruitment for a replacement begins, however, this may not be possible if an urgent replacement is required.

If you would like I would be more than happy to help with the appeal procedure.

YOUR TURN

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